* Of the United States Court of Appeals for the Tenth Circuit,

sitting by designation.

United States Court of Appeals

For the First Circuit

No. 02-2201

UNITED STATES,

Appellee,

v.

JOHN J. CONNOLLY, JR.,

Defendant, Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

 Lipez, Circuit Judge,

Porfilio, Senior Circuit Judge,

*

Howard, Circuit Judge.

Andrew Nathanson, with whom Tracy A. Miner, John J. Tangney,

Jr., and Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. were on

brief, for appellant.

William J. Nardini, with whom John H. Durham and Michael J.

Sullivan, United States Attorney, were on brief, for appellee.

August 14, 2003
1 Connolly does not appeal his convictions for obstruction of

justice and making a false statement.

-2-

LIPEZ, Circuit Judge. At the conclusion of a three week

trial, a federal jury found former Federal Bureau of Investigation

("FBI") agent John J. Connolly, Jr., guilty of one count of

racketeering under the Racketeer Influenced and Corrupt

Organizations Act ("RICO"), 18 U.S.C. § 1962(c), two counts of

obstruction of justice, 18 U.S.C. § 1503, and one count of making

false statements, 18 U.S.C. § 1001. The district court

subsequently imposed a sentence of 121 months of imprisonment,

followed by a two-year period of supervised release. Connolly now

appeals his RICO conviction, arguing that he is entitled to a

judgment of acquittal on the RICO charge because the government

failed to prove two critical elements of its RICO charge —

participation in an "enterprise," and a "pattern of racketeering

activity." See id. § 1961(4), (5) (defining "enterprise" and

"pattern of racketeering activity").1

Connolly also appeals his sentence, arguing that the

district court erred in its calculation of the applicable offense

level pursuant to sections 2E1.1, 2J1.2, and 2X3.1 of the United

States Sentencing Guidelines ("U.S.S.G." or "Guidelines").

Finally, Connolly argues that the district court erred when it

denied his request to convene a post-verdict evidentiary hearing to

inquire into the propriety of alleged note-taking by jurors. He
-3-

asks that we remand the case to the district court for an inquiry

into possible juror misconduct.

Finding no reason to disturb Connolly's conviction or

sentence or to remand to the district court, we affirm.

I.

We provide some general background facts here, saving our

more detailed discussion of the evidence for our assessment in Part

II of Connolly's claims of evidentiary insufficiency. Connolly

joined the FBI in 1968; from 1973 until 1990 he served as an agent

in the Bureau's Boston office. During his tenure, he was

responsible for handling several high-ranking, confidential

informants with connections to two criminal syndicates — the Winter

Hill Gang, and the New England branch of La Cosa Nostra. According

to the government, the Winter Hill Gang is a "clandestine criminal

organization engaged in multiple crimes, including murder, bribery,

extortion, loan sharking, and illegal gambling in the greater

Boston, Massachusetts area." La Casa Nostra — a considerably

larger, better known, and more established criminal organization —

similarly engages in illegal activities in and around Boston.

Despite the fact that the Winter Hill Gang and La Cosa Nostra were

often rivals, members of the two groups frequently cooperated in

criminal undertakings.

Two of the informants for whom Connolly was responsible,

James Bulger and Stephen Flemmi, were members of the Winter Hill
2 The indictment also named Bulger as a defendant on one

count. That count was ultimately dismissed on the government's

motion after the issuance of the superceding indictment (which did

-4-

Gang. Bulger and Flemmi reported on the activities of both the

Gang and La Cosa Nostra for over a decade. Shortly after Connolly

retired from the FBI in 1990, however, Bulger and Flemmi were

"closed" as FBI informants — i.e., the FBI no longer desired their

services.

After Bulger and Flemmi ceased to serve as informants,

their involvement with the Gang's criminal activities nonetheless

continued. For example, at some point in the early 1990s, Flemmi,

working with the "boss" of La Cosa Nostra's Boston family, Frank

Salemme, ran an illegal "numbers" operation in the Boston area. On

January 10, 1995, a federal grand jury indicted Bulger, Flemmi,

Salemme, and several other persons for multiple counts of illegal

gambling, extortion, assault, bribery, obstruction of justice,

loansharking, and RICO violations. See United States v. Salemme,

No. 94-CR-10287-MLW-2 (D. Mass. Jan. 10, 1995) (indictment).

Flemmi was quickly arrested and taken into custody. Bulger and

Salemme, however, forewarned of the pending indictment, disappeared

a few days before its issuance. The authorities apprehended

Salemme eight months later. Bulger remains at large.

The instant criminal proceeding began in December 1999,

when another federal grand jury indicted Flemmi and Connolly on

charges of racketeering, obstruction of justice, and conspiracy.2
not name Bulger as a defendant).

-5-

A superceding indictment was filed in October 2000 with additional

charges of obstruction of justice and making a false statement.

According to the superceding indictment, Connolly had led a doublelife for over two decades. While serving as an FBI agent, Connolly

had been intimately involved in the criminal activities of the

Winter Hill Gang and its members, receiving and making bribes from

and on behalf of members of the Gang. Even after his retirement

from the Bureau, Connolly allegedly continued to exploit his

connections within the Bureau to become privy to confidential

information that he would then pass along to members of the Winter

Hill Gang.

Specifically, the superceding indictment included nine

counts, which we summarize as follows:

Counts 1 & 2 – RICO and Conspiracy to Violate

RICO, alleging that Connolly had, through a

pattern of racketeering activity, participated

in the affairs of an association-in-fact

enterprise whose members included Bulger,

Flemmi, himself, and unidentified others. The

purpose of the enterprise was to protect

Bulger, Flemmi, and their associates

(including Salemme and members of the Winter

Hill Gang) from arrest and prosecution, and to

facilitate their criminal activities. The two

counts detail fourteen different "racketeering

acts," including allegations of bribery,

extortion, and obstruction of justice.

Count 3 – Conspiracy to Obstruct Justice,

alleging that Connolly and Flemmi, together

with others, had conspired to obstruct justice
3 The remaining counts against Connolly were severed prior to

trial and ultimately dismissed on the government's motion.

-6-

in the prosecution of Bulger, Flemmi, and

Salemme in United States v. Salemme.

Count 4 – Obstruction of Justice, alleging

that Connolly had informed Salemme of the

pending indictment in United States v.

Salemme.

Count 5 – Obstruction of Justice, alleging

that Flemmi had also provided Salemme with

news of the pending indictment.

Count 6 – Obstruction of Justice, alleging

that Connolly had caused an anonymous letter

to be sent to Judge Mark Wolf who was

presiding over United States v. Salemme. The

letter purported to come from three unnamed

Boston Police Officers and credited certain

claims made by the defense.

Counts 7 & 8 — Obstruction of Justice,

alleging that Connolly had persuaded Flemmi to

give false testimony in United States v.

Salemme. Specifically, Connolly persuaded

Flemmi to testify that another FBI agent — and

not Connolly — had alerted him and Bulger to

the pending indictment.

Count 9 – False Statement, alleging that

Connolly had lied to an FBI agent when he told

the agent that he had not been in contact with

the defense team in United States v. Salemme.

Flemmi ultimately pleaded guilty to Counts 3 and 5 (the only two

counts in which he was named) and was sentenced to 41 months of

imprisonment.

In May 2002, the trial against Connolly began on Counts

1, 4, 6, 7, and 9.3 At the close of the government's case and at

the close of all of the evidence, Connolly moved for a judgment of
-7-

acquittal pursuant to Fed. R. Crim. P. 29. The court denied the

motions. The jury returned guilty verdicts against Connolly on

four of the five counts at issue — Counts 1, 6, 7 and 9 — and

acquitted on Count 4. Connolly renewed his Rule 29 motion after

the verdict, and the court once again denied it.

On September 16, 2002, the district court sentenced

Connolly to a term of incarceration of 121 months followed by a

two-year period of supervised release. The district court denied

Connolly's request for release on bail pending appeal, and we

denied a similar, subsequent application. We now address

Connolly's arguments of error by the trial court.

II.

Connolly claims that he is entitled to a judgment of

acquittal on the RICO count because the government failed to

present sufficient evidence to prove beyond a reasonable doubt two

essential elements of the RICO charge: (1) Connolly's

participation in an "enterprise," and (2) a "pattern of

racketeering activity," as defined by statute and applicable case

law. See 18 U.S.C. § 1961(4), (5).

In evaluating a claim of insufficiency of the evidence,

we review the record de novo, and "[w]e will affirm the conviction

if, 'after assaying all the evidence in the light most amiable to

the government, and taking all reasonable inferences in its favor,

a rational factfinder could find, beyond a reasonable doubt, that
-8-

the prosecution successfully proved the essential elements of the

crime.'" United States v. Boulerice, 325 F.3d 75, 79 (1st Cir.

2003) (quoting United States v. O'Brien, 14 F.3d 703, 706 (1st Cir.

1994)). We "need not believe that no verdict other than a guilty

verdict could sensibly be reached." United States v. Gomez, 255

F.3d 31, 35 (1st Cir. 2001) (quoting United States v. Echeverri,

982 F.2d 675, 677 (1st Cir. 1993)). Rather, the operative inquiry

is "whether, after viewing the evidence in the light most favorable

to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt."

Jackson v. Virginia, 443 U.S. 307, 319 (1979) (original emphasis).

To that end, a reviewing court must play "a very

circumscribed role in gauging the sufficiency of the evidentiary

foundation upon which a criminal conviction rests." United States

v. Blasini-Lluberas, 169 F.3d 57, 62 (1st Cir. 1999). We will give

considerable deference to a jury's assessment of the evidence, and

we will disturb the jury's verdict only if it is premised upon

"evidentiary interpretations and illations that are unreasonable,

insupportable, or overly speculative." United States v. Czubinski,

106 F.3d 1069, 1073 (1st Cir. 1997). That is to say, we will

reverse only if the verdict is irrational. See United States v.

Berrios, 132 F.3d 834, 843 (1st Cir. 1998) ("[W]e must consider the

evidence in the light most favorable to the verdict and reverse

only if no rational trier of fact could have found him guilty.").
-9-

The RICO count alleged a violation of 18 U.S.C.

§ 1962(c), which provides in pertinent part:

It shall be unlawful for any person employed

by or associated with any enterprise . . . to

conduct or participate, directly or

indirectly, in the conduct of such

enterprise's affairs through a pattern of

racketeering activity or collection of

unlawful debt.

The meaning of "enterprise" and "pattern of racketeering activity"

is explicated in § 1961:

(4) "enterprise" includes any individual,

partnership, corporation, association, or

other legal entity, and any union or group of

individuals associated in fact although not a

legal entity;

(5) "pattern of racketeering activity"

requires at least two acts of racketeering

activity, one of which occurred after the

effective date of this chapter and the last of

which occurred within ten years (excluding any

period of imprisonment) after the commission

of a prior act of racketeering activity;

The Supreme Court has repeatedly indicated that courts should take

a "natural and commonsense approach" in assessing the elements of

a RICO violation. H.J. Inc. v. Northwestern Bell Tel. Co., 492

U.S. 229, 237 (1989); see Reves v. Ernst & Young, 507 U.S. 170, 179

(1993); United States v. Turkette, 452 U.S. 576, 580–81 (1981); see

also United States v. Boylan, 898 F.2d 230, 250 (1st Cir. 1990)

("In the absence of any pat formula, the Court has instructed us to

use a flexible approach . . . 'deriv[ing] from a common-sense,

everyday understanding of RICO's language and Congress' gloss on
-10-

it.'") (quoting H.J. Inc., 492 U.S. at 241). Against this

backdrop, we now turn to Connolly's specific claims.

A. "Enterprise"

1. The Charge

Count 1 of the superceding indictment alleged that

Connolly, Bulger, Flemmi, and others were members of an

"enterprise," that is to say, "a group of individuals associated in

fact," 18 U.S.C. § 1961(4), and that this enterprise,

through its members and associates, acted to

protect James Bulger, Stephen Flemmi and their

associates, including Francis P. Salemme and

those in the Winter Hill Gang, from arrest and

prosecution for criminal activities including

murder, loan sharking, illegal gambling,

extortion, obstruction of justice, and

bribery; and it acted to facilitate those

criminal activities of Bulger, Flemmi, and

their associates.

The indictment further alleged that the enterprise protected and

fostered its members' criminal activities by

(1) providing Bulger and Flemmi with

confidential law enforcement information

regarding Grand Jury investigations, courtauthorized electronic surveillance, and other

investigative efforts; (2) deflecting and

squelching prosecutions and criminal

investigations of their crimes; and (3)

improperly preserving their status as FBI

informants through the filing of misleading

official reports and by failing to report

information relating to Bulger and Flemmi

which was material to the investigation of

criminal activity.

The indictment distinguishes this association-in-fact enterprise

from the Winter Hill Gang and La Cosa Nostra, though individual
-11-

affiliations do overlap. The indictment also alleges that members

of the enterprise committed fourteen different "racketeering acts,"

which included several acts of bribery, obstruction of justice, and

extortion.

2. The Evidence

Kevin Weeks, who identified himself as Bulger's "righthand man," was the government's star witness and provided

substantial testimony regarding the existence of the enterprise.

For example, Weeks testified that a special fund was created from

some of the proceeds of Bulger's and Flemmi's criminal activities,

and that Connolly received cash payments from that fund in exchange

for a regular flow of information about law enforcement activities

that might affect the group. Additionally, Weeks testified that

Connolly was the enterprise's contact in the FBI, and that Bulger

had given Connolly money in return for protecting the enterprise.

According to Weeks, Bulger told him that Connolly was "one of

ours." John Martorano, a member of the Winter Hill Gang,

corroborated Weeks's testimony regarding Connolly's repeated

receipt of gratuities in exchange for information. Salemme

likewise testified that he and Flemmi had twice set aside $5000

from the proceeds of their numbers racket to pay Connolly for the

information he provided.

In return for these payments, Connolly provided a wealth

of sensitive information, often with dire consequences. For
-12-

example, Martorano testified that Connolly told Bulger that an

informant named Richard Castucci had provided the FBI with

information regarding the whereabouts of two fugitive Winter Hill

members. Bulger told Martorano of the leak, and Martorano in turn

murdered Castucci in order to silence him. Martorano also

testified that Connolly had told Bulger and others that another

informant, Brian Halloran, had implicated Martorano in the murder

of a recalcitrant associate, Roger Wheeler. Weeks testified that

Bulger, upon learning from Connolly of Halloran's betrayal,

ambushed Halloran as he got into a car outside a Boston restaurant,

and fatally shot both Halloran and the driver, Michael Donahue.

Martorano also testified that Connolly told Bulger and

Flemmi that the FBI agents who had been working with Halloran were

going to put pressure on another associate, John Callahan, to come

clean about the Wheeler murder. According to Martorano, Connolly

told Bulger and Flemmi that they were "all going to go to jail for

the rest of our life if something doesn't happen to John Callahan."

Worried about the possibility of a breach, Bulger and Flemmi

convinced Martorano that Callahan had to be silenced. In an effort

to deflect any attention away from the ongoing Boston

investigation, Martorano lured Callahan to Florida where, with

another associate, he murdered Callahan.

Weeks also testified that he and Bulger had extorted a

person named Stephen Rakes into selling them a South Boston liquor
-13-

store. After Weeks had forcibly acquired ownership of the store,

Rakes's wife went to her uncle, Joseph Lundbohm, who was a

detective in the Boston Police Department. Lundbohm testified that

he, in turn, went to Connolly with the problem, and Connolly stated

that nothing could be done unless Rakes agreed to wear a recording

device. Lundbohm, out of fear for the safety of his niece and her

husband, told Connolly that wearing a wire would be unacceptable.

Connolly did not take any action to stop the extortionate takeover,

nor did he report the incident to his superiors.

As for Connolly's efforts to derail the United States v.

Salemme prosecution, Weeks testified that on December 23, 1994,

Connolly came to the South Boston liquor store that Weeks and

Bulger had extorted from the Rakes, looking for Bulger. Only Weeks

was on the premises, however, and Connolly led him to the inside of

the walk-in refrigerator at the back of the store where electronic

surveillance would be difficult. There, Connolly told Weeks that

he had just learned that federal indictments were pending against

Bulger and Flemmi and that agents planned to make arrests over the

holidays. Even though Connolly no longer worked at the FBI, he

told Weeks that he was certain of this information because it had

come from then-FBI Assistant Special Agent in Charge Dennis

O'Callaghan. Connolly also indicated that only four people in the

FBI knew about the pending indictment. Connolly instructed Weeks

to pass along the information to Bulger and Flemmi immediately.
-14-

Weeks did so. Flemmi, in turn, passed along the information to

Salemme. Bulger and Salemme both skipped town and managed to avoid

arrest. Salemme was ultimately arrested eight months later.

Bulger's whereabouts remain unknown.

Weeks also testified that he and Connolly had worked

together to compose a letter that they submitted anonymously to

Judge Mark Wolf, the United States District Judge presiding over

the United States v. Salemme case. The letter, printed on Boston

Police Department letterhead, claimed to be from three disgruntled

Boston Police Officers, and stated that the wiretaps the government

was planning to use in its prosecution had been illegally obtained.

Judge Wolf testified that the letter had caused him to order the

parties to submit briefs, to hold a number of pretrial hearings,

and to hear testimony on the contents of the letter. Weeks

testified that Connolly eventually told him the identities of the

confidential informants who had worn the wiretaps, and Weeks passed

along this information to Flemmi and Salemme in jail.

Finally, Weeks testified that Connolly feared that Flemmi

would divulge Connolly's involvement in the enterprise and name him

as the person who had leaked the news of the indictments.

Connolly, through Weeks, convinced Flemmi to testify that

Connolly's former FBI supervisor, John Morris, had tipped him off

about the indictments. However, Morris had been transferred out of

Boston in 1991, long before the indictment issued. According to
-15-

Weeks, Connolly advised Weeks that Flemmi should testify that

Morris had learned of the impending indictments through what is

known as a "pros memo" (i.e., prosecution memo) that Morris had

seen while in Washington. Flemmi ultimately testified to that

effect during hearings before Judge Wolf.

3. The Legal Requirements for an Enterprise

As the Supreme Court indicated in Turkette, the

government is required to prove both the existence of an

"enterprise" and a "pattern of racketeering activity."

The enterprise is an entity, for present

purposes a group of persons associated

together for a common purpose of engaging in a

course of conduct. The pattern of

racketeering activity is, on the other hand, a

series of criminal acts as defined by the

statute. The former is proved by evidence of

an ongoing organization, formal or informal,

and by evidence that the various associates

function as a continuing unit. The latter is

proved by evidence of the requisite number of

acts of racketeering committed by the

participants in the enterprise. While the

proof used to establish these separate

elements may in particular cases coalesce,

proof of one does not necessarily establish

the other. The "enterprise" is not the

"pattern of racketeering activity"; it is an

entity separate and apart from the pattern of

activity in which it engages. The existence

of an enterprise at all times remains a

separate element which must be proved by the

Government.

Turkette, 452 U.S. at 583 (citation omitted). As this passage

makes clear, an enterprise is not merely a related assortment of

criminal activities. Rather, there must be some goal — "a purpose
4 Racketeering Acts 1 through 10 allegedly took place during

Connolly's tenure as an FBI agent. Act 1 alleged that Connolly

took a bribe from Bulger and Flemmi. Acts 2 through 5 alleged that

Connolly paid bribes to Morris on behalf of Bulger and Flemmi. Act

6 pertained to Connolly's involvement in the extortion of Rakes.

Acts 7 through 9 concerned Connolly's sharing of confidential law

enforcement information that led to the killings of Castucci,

Callahan, and Halloran. Act 10 alleged that Connolly, working with

Morris, had informed Bulger and Flemmi of a court-authorized

wiretap and an ongoing grand jury investigation into illegal

gambling activity. Racketeering Acts 11 through 14 allegedly took

-16-

of engaging in a course of conduct" — beyond the isolated benefit

that can redound from the commission of each criminal act, and

there must be an "ongoing organization" with "associates

function[ing] as a continuous unit." Id. The organization need

not be formal or have an "ascertainable structure." United States

v. Patrick, 248 F.3d 11, 19 (1st Cir. 2001). To the contrary, it

need only be a "group of persons associated together for a common

purpose of engaging in a criminal course of conduct." United

States v. Owens, 167 F.3d 739, 751 n.6 (1st Cir. 1999) (quoting

United States v. Doherty, 867 F.2d 47, 68 (1st Cir. 1989))

(modification omitted).

4. Connolly's Arguments

a. Continuity

Connolly argues that the evidence failed to demonstrate

"that the members of the alleged enterprise had functioned as an

ongoing organization" (original emphasis). In pressing this claim,

he focuses on the fourteen racketeering acts alleged in the

indictment.4 These fourteen acts were submitted to the jury for a
place during the period 1994 to 1998, after Connolly had retired

from the FBI. All four involved obstruction of justice surrounding

the United States v. Salemme case and are discussed in more detail

in Part II.B below.

Several of the Acts were broken down into subparts, each one

having the same factual basis. For example, the indictment divided

the sixth Racketeering Act into Act 6A and 6B, "either one of which

alone constitutes Racketeering Act 6." As described on the verdict

sheet, Act 6A accused Connolly of "aiding and abetting the

extortion of Julie and Stephen Rakes," while 6B accused him of

"aiding and abetting a conspiracy to extort Julie and Stephen

Rakes."

-17-

determination of "proven beyond a reasonable doubt" or "not proven

beyond a reasonable doubt." Of the fourteen, the jury found nine

of them "not proven beyond a reasonable doubt." Of the

racketeering acts found by the jury to be "proven beyond a

reasonable doubt," one was an act of bribery in 1982 or 1983, and

the other were four acts of obstruction of justice in the mid- to

late-1990s in connection with the United States v. Salemme

prosecution.

Connolly cites these findings to argue that the

government had failed to prove "continuity" in the enterprise,

i.e., that the enterprise had functioned as an ongoing organization

over the period of time alleged, from September 1975 to September

1998. Since the jury found that all but one of the alleged

racketeering acts dating from the 1970s and 1980s had not been

proven beyond a reasonable doubt, Connolly argues that there was an

insufficient basis for the jury to conclude that Connolly was part

of an ongoing criminal enterprise. See, e.g., United States v.
-18-

Pelullo, 964 F.2d 193, 212 (3d Cir. 1992) (noting that RICO

enterprises should be "distinguished from individuals who associate

for the commission of sporadic harm").

We reject this argument for two reasons. First, the

government introduced significant evidence of the existence of the

enterprise apart from the specified racketeering acts. For

example, Weeks, Martorano, and Salemme testified about several

payments made to Connolly over the period in question that do not

appear in the alleged racketeering acts. They also testified that

these payments were made to guarantee the flow of confidential law

enforcement information from Connolly to members of the enterprise.

This testimony provided evidence of an ongoing criminal

relationship between Connolly and members of the enterprise, and

supported the jury's ultimate finding regarding Connolly's

participation in an ongoing association-in-fact.

Second, as the government correctly argues, simply

because the jury found a specified racketeering act as "unproven

beyond a reasonable doubt" does not mean that the jury found the

evidence relating to that act unpersuasive, in combination with

other evidence in the case, on the existence of an association-infact enterprise. Rather, it may only mean that the government did

not prove a requisite element of the underlying crime alleged as a

racketeering act. For example, the district court instructed the

jury that in order to prove Act 1 — that Connolly had accepted a
-19-

bribe — the government had to demonstrate that Connolly had

"demanded, sought, or received a thing of value as a quid pro quo,

or in return for a promise, implicit or stated, to do or omit to do

a particular act in violation of his lawful duty." In returning a

finding of "unproven," the jury could have concluded that the

evidence underlying Act 1, while failing to demonstrate this

requisite quid pro quo, nevertheless demonstrated a corrupt

gratuity evidencing the existence of an illegal enterprise.

Likewise, Racketeering Act 7, as described on the verdict

sheet, alleged that Connolly had committed obstruction of justice

by "alerting Bulger that Richard Castucci was an informant." The

district court instructed the jury that in order to prove

obstruction of justice, the government had to demonstrate that

Connolly had knowingly endeavored to obstruct or impede a pending

judicial proceeding. The court also instructed the jury that "[a]

judicial proceeding is pending once a grand jury, for example,

begins its investigation or when an indictment has been returned."

The jury might have concluded, however, that Connolly leaked

information regarding Castucci for the purpose of frustrating an

FBI investigation, and not to obstruct the grand jury proceedings.

Hence, the fact that nine of the fourteen enumerated

racketeering acts were found "unproven" does not compel a finding

of no continuity in the enterprise. The evidence relating to those

acts remained available to the jury in its evaluation of the
-20-

enterprise element of the RICO charge. Cf. United States v.

Vastola, 899 F.2d 211, 222 (3d Cir.) (holding that findings of not

guilty on three of four alleged predicate racketeering acts do not

mandate judgment of acquittal on RICO count), vacated on other

grounds, 497 U.S. 1001 (1990). That being so, the inquiry on

appeal is whether the jury, in light of the totality of the

evidence, was presented with sufficient evidence of "continuity" to

support a conviction. See United States v. Powell, 469 U.S. 57, 67

(1984). Given the testimony of Weeks, Martorano, and others

recounting a regular course of criminal conduct over two decades,

we have no difficulty in concluding that the government satisfied

its burden on this point.

b. Organization

Connolly next argues that the government failed to adduce

sufficient evidence demonstrating "that the members of the alleged

enterprise had functioned as a continuing unit" (original

emphasis). Rather, as Connolly characterizes it, the evidence

demonstrated, at most, "the sporadic occurrence of [criminal

racketeering] activity" by a group that had "no name, no regular

business or activities, no cohesion over time, no sense of

membership or ongoing association, no sharing of resources or

revenues, [and] no systemic linkage or coordination of activities."

Hence, according to Connolly, there were "no indicia of an

organization" and, therefore, no "enterprise."
-21-

We disagree with Connolly's appraisal of the evidence, as

well as his reading of the term "enterprise." The evidence showed

that Connolly, Bulger, Flemmi, Salemme, and others worked together

in an association-in-fact enterprise over a period of almost two

decades, joining forces to protect themselves from prosecution and

to further other criminal activities — some alleged in the

indictment, and others not specifically alleged. There was

cohesion in the group over time; the membership shared resources

and revenues; there was, in fact, a sense of membership.

As for the meaning of "enterprise," there is no

requirement under RICO that an enterprise have an "ascertainable

structure." Patrick, 248 F.3d at 19. Indeed, as the Supreme Court

noted in Turkette, "[t]here is no restriction upon the associations

embraced by the [statute's] definition," Turkette, 452 U.S. at 580,

and "Congress has instructed us to construe RICO 'liberally . . .

to effectuate its remedial purposes.'" United States v. London, 66

F.3d 1227, 1243 (1st Cir. 1995) (quoting Pub. L. No. 91-452, §

904(a), 84 Stat. 922, 947 (1970) (reprinted in note following 18

U.S.C. § 1961)). Hence an "enterprise" need only be "a group of

persons associated together for a common purpose of engaging in a

criminal course of conduct." Owens, 167 F.3d at 751 n.6; see also

Boylan, 898 F.2d at 242 ("What counts is whether it can be said, on

the totality of the evidence, that all of the alleged
-22-

coconspirators directed their efforts towards the accomplishment of

a common goal. . . .") (internal quotation marks omitted).

Construing the term "enterprise" broadly, as we must, we

have no difficulty in concluding that the association-in-fact

alleged in the indictment was sufficiently "organized" to support

a RICO conviction, and that the government had adequately proved

the existence of that enterprise to sustain a conviction. Indeed,

there was a discernable structure to the enterprise, with members

playing designated roles in keeping the enterprise functioning as

a viable unit. For example, Martorano could be considered the head

of the enterprise's enforcement division, executing individuals who

could prove to be a liability. Connolly's role was that of

information officer, i.e., an intelligence conduit from law

enforcement. Weeks, as Bulger's "right-hand man," managed special

funds and functioned as an intermediary between Bulger and others.

Connolly insists, however, that Bulger, Flemmi, and

others were actually members of the Winter Hill Gang, and that this

somehow forecloses the possibility of membership in another

enterprise. We fail to follow this logic. As the indictment makes

clear, the alleged enterprise in this case — while perhaps

overlapping in membership and some criminal activities with the

Winter Hill Gang and even La Cosa Nostra — was a separate entity,

distinguishable from both of these other criminal organizations.

Membership in the Winter Hill Gang does not, ipso facto, preclude
-23-

membership in another criminal enterprise. While the evidence

demonstrated that Bulger, Flemmi, and others were associates of the

Winter Hill Gang, it also demonstrated that they were members of a

separate enterprise dedicated to their own protection and the

advancement of their own criminal activities. Moreover, evidence

was presented suggesting that the enterprise was distinct (if not

totally separate) from the Winter Hill Gang. For example, the jury

heard testimony that part of the money that the enterprise's

members extorted or otherwise illegally procured was used to pay

bribes necessary to ensure the enterprise's survival. Moreover,

Bulger told Weeks that Connolly, who was not a member of the Winter

Hill Gang, was nevertheless "one of ours." The jury could

therefore have readily inferred the existence of a continuing unit

which included Connolly and was distinct from the Winter Hill Gang.

B. "Pattern of Racketeering Activity"

1. The Predicate Acts

Racketeering Acts 11 and 12 occurred in late 1994 or

early 1995 and concerned Connolly's tip-offs to Bulger, Flemmi, and

Salemme regarding their indictment. Racketeering Act 13 occurred

in March 1997 and concerned the fraudulent, anonymous letter that

Connolly sent to Judge Wolf purporting to be from three police

officers. Racketeering Act 14 occurred in 1998 and concerns the
5 In evaluating Connolly's argument regarding the "pattern of

racketeering activity" element, we do not rely on the "unproven"

Racketeering Acts (1 through 3 and 5 through 10) described in note

4, supra. The Third Circuit, however, has indicated that a

reviewing court need not be constrained by the jury's findings

regarding the individual racketeering acts in determining whether

the evidence, taken as a whole, supports an ultimate finding of

guilt through a "pattern of racketeering activity." See Vastola,

899 F.2d at 222–23. Since the "proven" racketeering acts (11

through 15) establish the requisite pattern, we need not consider

whether other evidence adduced at trial supports such a finding.

-24-

false testimony that Flemmi gave after being coached and directed

by Connolly.5

2. The Legal Requirements for a Pattern

While the RICO statute does not define in absolute terms

what constitutes a "pattern of racketeering activity," it does set

a minimum requirement: proof of a pattern of racketeering activity

"requires [proof of] at least two acts of racketeering activity"

within a ten-year period. 18 U.S.C. § 1961(5). The Supreme Court,

interpreting RICO, has stated that "while two acts are necessary,

they may not be sufficient." Sedima, S.P.R.L. v. Imrex Co., 473

U.S. 479, 496 n.14 (1985). "It is not the number of predicates"

that determines whether they constitute a pattern of racketeering

activity; rather, it is "the relationship that they bear to each

other or to some external organizing principle." H.J. Inc., 492

U.S. at 238 (emphasis added). The two factors most pertinent to

this determination, according to the Court, are relatedness and

continuity. See id. at 239 ("It is this factor of continuity plus
-25-

relationship which combines to produce a pattern.") (original

emphasis) (citation omitted).

Continuity, according to the Supreme Court, can refer

"either to a closed period of repeated conduct, or to past conduct

that by its nature projects into the future with a threat of

repetition." Id. at 241. We have previously indicated that it is

"'difficult to formulate in the abstract any general test' for the

continuity required for a pattern." Apparel Art Int'l v. Jacobson,

967 F.2d 720, 722 (1st Cir. 1992) (quoting H.J. Inc., 492 U.S. at

241); see also Efron v. Embassy Suites (P.R.), Inc., 223 F.3d 12,

15 (1st Cir. 2000) ("We have more than once remarked upon the

difficulty of articulating concrete guidelines for this 'continuity

plus relationship' standard for identifying a pattern."). In H.J.

Inc. the Supreme Court noted that Congress chose not to define

"pattern of racketeering activity" with any degree of specificity

in the RICO statute. Hence, the Court instructed lower courts to

adopt a flexible approach to RICO claims, employing a "commonsense,

everyday understanding of RICO's language and Congress' gloss on

it." H.J. Inc. 492 U.S. at 241. Lower courts, in turn, have

repeatedly looked to one guidepost contained in H.J. Inc.: "A

party alleging a RICO violation may demonstrate continuity over a

closed period by proving a series of related predicates extending

over a substantial period of time," or by evidence that the acts

"include a specific threat of repetition extending indefinitely
-26-

into the future." Id. at 242. Because RICO was intended by

Congress to apply only to enduring criminal conduct, "[p]redicate

acts extending over a few weeks or months and threatening no future

criminal conduct do not satisfy this requirement." Id.; Efron, 223

F.3d at 15; Apparel Art, 967 F.2d at 723.

3. Connolly's Argument

Connolly concedes that the four racketeering acts at

issue are sufficiently related for RICO purposes. Each act served

to protect members of the enterprise. Connolly insists, however,

that the four racketeering acts simply constituted a "single

criminal episode," that they did not present the threat of ongoing

conduct, and that they therefore were not a pattern of racketeering

activity. We disagree.

While we have previously indicated that "[w]e can be

reasonably certain" that the pattern requirement "does not

encompass a single criminal episode, a single 'crime' (in the

ordinary, nontechnical sense of that word)," Apparel Art, 967 F.2d

at 722 (original emphasis), we have also indicated that a "single

criminal episode" is something narrow in scope and purpose, for

example, a single interstate bank robbery. As we explained in

Apparel Art, a bank robbery could include several different

"crimes" (in the technical sense of the word) — such as gun

possession, threatening a teller, stealing a getaway car, and

eventually lying about one's participation — but they nevertheless
6 The Second Circuit has noted that courts have been quicker

to find RICO violations "in cases where the acts of the defendant

or the enterprise were inherently unlawful, such as murder or

obstruction of justice, and were in pursuit of inherently unlawful

goals." United States v. Aulicino, 44 F.3d 1102, 1111 (2d Cir.

1995). We agree with the common-sense conclusion that in such

situations, there is a greater threat of future criminal conduct.

Of course, as explained in the text, there is no hard and fast

rule, and the fact that there may be "inherently unlawful" conduct

underlying the RICO charge would not prevent us from concluding

-27-

do not add up to a "pattern of racketeering activity." See id.

The instant case, however, is altogether different. Here, there

were at least three different "episodes" — the disclosing of the

indictment, the fabricated letter, and the perjured testimony —

each planned and executed independently of the others over a period

of years, and each the result of detailed planning and scheming by

members of a criminal enterprise seeking to impede the criminal

prosecutions of their cohorts. This is precisely the kind of

activity that RICO was intended to forestall. See H.J. Inc., 492

U.S. at 247–48.

As for the threat of future criminal conduct, the

racketeering acts at issue were part of an ongoing criminal

enterprise undertaken to facilitate future criminal acts by other

members of that enterprise. The enterprise sought to insure that

its members would never be brought to justice, and indeed, one of

them is still at large. As the government describes it, the

enterprise engaged in a "do-whatever-is-necessary" long-term

pattern of criminal activity that threatened ongoing criminal

conduct of the sort that RICO was designed to prevent.6 In short,
that there was nevertheless no pattern of racketeering activity.

See, e.g., Miranda v. Ponce Fed. Bank, 948 F.2d 41, 45–46 (1st Cir.

1991).

-28-

there was ample evidence supporting the jury's conclusion that the

government had satisfied the "pattern of racketeering activity"

element of the crime.

III.

In sentencing Connolly, the district court relied upon

the Pre-Sentence Report ("PSR") prepared by the U.S. Probation

Office. The PSR calculated the appropriate sentence after

navigating through a series of cross-references as follows (with

the cross-referenced subject matter underlined for the reader's

convenience):

C Under U.S.S.G. § 2E1.1, the base offense level for a

RICO conviction is the greater of either (i) 19, or

(ii) the offense applicable to the underlying

racketeering activity, i.e., obstruction of justice.

C As for the underlying racketeering activity, under

U.S.S.G. § 2J1.2, the base offense level for

obstruction of justice is 12. Subsection (c), however,

indicates that if the obstruction of justice interfered

with the investigation or prosecution of a criminal

offense, the court should look to § 2X3.1 (accessory

after the fact) with respect to the criminal offense
-29-

obstructed, provided that the corresponding offense

level is greater than 12.

C Section 2X3.1 provides that the base offense level for

being an accessory after the fact is 6 levels lower

than the offense level for the underlying offense, but

in no event less than 4, or more than 30.

C The PSR identified first-degree murder as the

underlying offense because (1) Connolly's racketeering

activities concerned the obstruction of the prosecution

of United States v. Salemme, and (2) the most serious

of the underlying offenses charged in the Salemme

indictment was first-degree murder.

C Under § 2A1.1, the base offense level for first-degree

murder is 43.

Under § 2X3.1, however, the maximum base offense level for

accessory after the fact is 30. The Probation Office therefore

recommended a base offense level of 30. The PSR determined that no

adjustment was necessary for the multiple counts, or for any other

reason, and that Connolly should be placed in Criminal History

Category I. The corresponding sentencing range for Category I,

when combined with an offense level of 30, is 97 to 121 months.

At sentencing, Connolly challenged the calculation of the

offense level, arguing that he was not "subjectively aware" of the

more serious charges alleged in the Salemme indictment, and that
-30-

first-degree murder should therefore not be considered the

"underlying offense" under U.S.S.G. § 2X3.1. The district court

properly overruled Connolly's objection. See United States v.

McQueen, 86 F. 3d 180, 184 (11th Cir. 1996) ("Neither § 2J1.2(c)(1)

nor § 2X3.1 requires such knowledge as a prerequisite to

application of the offense level for the 'underlying offense.'").

It then adopted the factual findings and the Guidelines calculation

contained in the PSR, and sentenced Connolly to the maximum of the

applicable range, i.e., 121 months.

On appeal, Connolly abandons his subjective knowledge

argument and presses a new argument that the district court made a

"basic mistake" in sentencing when it referenced the murder

guideline "without conducting any fact-finding" as to what exactly

constitutes the "underlying offense." Since Connolly raises this

objection for the first time on appeal, we review for plain error

only. United States v. Henderson, 320 F.3d 92, 102 (1st Cir.

2003); see United States v. Grant, 971 F.2d 799, 803 (1st Cir.

1992) (noting that "as a general rule, appellant may not 'switch

horses mid-stream' and raise new legal arguments not made the basis

for objections in the district court"). Accordingly, Connolly

"bears the burden of proving (1) an error, (2) that is plain, and

(3) that affects substantial rights." United States v. DownsMoses, 329 F.3d 253, 263 (1st Cir. 2003). Assuming he can meet

this high hurdle, Connolly must then demonstrate that the error
-31-

"seriously impaired the fairness, integrity, or public reputation

of judicial proceedings." United States v. Matos, 328 F.3d 34, 43

(1st Cir. 2003).

The plain language of the applicable sections of the

Guidelines does not support Connolly's argument. The obstruction

of justice guideline, § 2J1.2(c), provides that:

If the offense involved obstructing the

investigation or prosecution of a criminal

offense, apply § 2X3.1 (Accessory After the

Fact) in respect to that criminal offense, if

the resulting offense level is greater than

that determined above.

(emphasis added). We fail to see how this language obliges an

evidentiary inquiry into the substance of "that criminal offense."

Moreover, the commentary to section 1B1.5 (governing the

interpretation of cross-references) indicates that, 

A reference may direct that, if the conduct

involved another offense, the offense

guideline for such other offense is to be

applied. . . . Where there is more than one

such offense, the most serious such offense .

. . is to be used.

U.S.S.G. § 1B1.5, comment. (n.1). The PSR followed these

directives to the letter. The jury found that Connolly had

obstructed the prosecution in United States v. Salemme at various

times from late 1994 to mid-1998, including after the grand jury

had returned a superceding indictment charging Flemmi, Bulger,

Salemme, and others with a number of crimes, including first-degree

murder. The Probation Office reasonably looked to the most serious
-32-

offense contained in the superseding indictment, and, as explained

above, calculated the base offense level at 30.

This is not to say that a factual inquiry into the

underlying offense would never be appropriate. For example, if a

defendant were convicted of obstruction of justice for lying in a

grand jury proceeding, a sentencing court would be justified in

probing deeper into the nature of the underlying offense.

Otherwise, the perjurer, through his false testimony, could cause

an indictment for a minor (instead of a serious) crime to issue,

and then gain the benefit of his perjury if the court were to rely

solely on the indictment in determining the underlying offense.

The converse, of course, is also true — an overzealous prosecutor

could seek to enhance the perjurer's sentence by spuriously

convincing a grand jury to increase the counts in an indictment.

Hence, the Fourth Circuit has held that, in such a situation, a

factual inquiry into what constitutes the underlying offense would

not be inappropriate. See United States v. Dickerson, 114 F.3d

464, 467–68 (4th Cir. 1997). The Ninth Circuit, citing Dickerson,

indicated in United States v. Arias, 253 F.3d 453 (9th Cir. 2001),

that a factual inquiry into the underlying offense would be

appropriate only if there were a "genuine dispute" as to its

substance. Id. at 461 (emphasis added). 

Connolly relies unpersuasively on Dickerson and Arias in

pressing his claim. Unlike Dickerson, Connolly did not perjure
-33-

himself before a grand jury, and there was therefore no risk of

over- or under-charging of the indictment. And unlike Arias, there

is no genuine dispute in this case as to the underlying offense.

When Connolly wrote the fraudulent letter to Judge Wolf, and when

he instructed Flemmi on how to lie on the witness stand, the

Salemme prosecution included charges of first-degree murder.

Moreover, Weeks testified during the trial that Connolly's goal was

to get the entire case against Flemmi "tossed out," and substantial

evidence adduced at trial supports that conclusion. Finally, even

assuming that an inquiry into the underlying offense would be

appropriate in this case, and assuming it was error for the

district court not to undertake that inquiry sua sponte, any such

error would be far from "plain," i.e., "clear, in the sense that it

was obvious." United States v. Geronimo, 330 F.3d 67, 74–75 (1st

Cir. 2003) (internal quotation marks omitted). Indeed, the fact

that Connolly, who was ably represented by counsel below, only

belatedly turns to this argument, and cites only two cases from

other jurisdictions, belies any claim that the error was truly

"obvious."

Since Connolly has failed to demonstrate that the

district court committed any error — plain or otherwise — when it

determined that first-degree murder was the "underlying offense"

for purposes of U.S.S.G. § 2J1.2(c) and § 2X3.1, we affirm the

sentence imposed by the district court.
-34-

IV.

On the first day of trial, when the jury first entered

into the courtroom, the district court judge noticed that one of

the jurors was carrying a notebook. Without prompting from

counsel, the judge informed the jury as follows:

I noticed one of you came in with a notebook.

I just want to alert you that I do not permit

note taking. I want you to just sit and

listen to the evidence and then use your

collective memories as you deliberate at the

conclusion of the case. Some very, very fine

judges, colleagues, friends of mine, they do

permit note taking. I don't. I want you to

just sit back and pay attention. So that is

the way we will proceed.

Connolly did not object to this instruction, nor did he seek

clarification or modification of it. The parties do not recall

seeing any jurors taking notes in the courtroom over the course of

the trial.

Almost a month after the trial had ended, an article

appeared in the Boston Globe which stated, in pertinent part:

Although the judge had prohibited jurors from

taking notes during the trial, some jurors

went home and jotted down testimony they had

heard that day, according to [two jurors]. "A

couple of jurors took notes at night, which

was very helpful [during deliberations]," [one

juror] said.

(second modification in original). Arguing that the jury may have

relied on "extraneous prejudicial information" during

deliberations, Connolly filed a motion for an evidentiary inquiry

into whether jurors had, in fact, taken notes during trial and
7 Connolly unsuccessfully renewed this claim in his successive

applications for release pending appeal. The district court,

denying the request for release, concluded that "no prejudice to

the Defendant resulted from the jurors' considering notes they may

have taken at night." In our order denying the same, we noted the

article's ambiguity with respect to whether the alleged notes

actually made their way into the jury room, and, citing United

States v. Bassler, 651 F.2d 600, 601–02 (8th Cir. 1981), we

indicated that "[e]ven assuming that the jurors consulted these

notes during deliberations, it is far from clear that prejudice

should be presumed in the absence of a cautionary instruction

[regarding the proper use of notes during deliberations]."

-35-

whether they had considered any such notes during their

deliberations. In a brief order, the district court denied the

request:

On the first day of trial I told the jurors I

did not permit note taking during trial . . .

. I did not, however, forbid the jurors from

making notes of their impressions of the

evidence when not in court. Indeed, writing

material was provided to the jurors in their

deliberating room. It was expected that

jurors would make notes and use them during

their deliberations. There is no occasion for

the inquiry requested by Defendant.

Defendant's Motion, therefore, is DENIED.

Connolly now assigns error to this decision,7 asking that we remand

the case for further inquiry into this purported juror

"misconduct."

We review the district court's response to an allegation

of juror misconduct only for abuse of discretion. See United

States v. Ortiz-Arrigoitia, 996 F.2d 436, 442 (1st Cir. 1993)

(indicating that district court has broad discretion to "determine

the nature and extent of its inquiry" into juror improprieties);

Mahoney v. Vondergritt, 938 F.2d 1490, 1492 (1st Cir. 1991) (noting
-36-

that district court judges have "broad discretion in determining

how to respond to allegations of extraneous influence on jurors");

Boylan, 898 F.2d at 258 ("[T]he district court has broad discretion

to determine the type of investigation which must be mounted.").

Federal Rule of Evidence 606(b) codifies the "nearuniversal and firmly established common-law rule" that prohibits

the admission of juror testimony to impeach a jury verdict. Tanner

v. United States, 483 U.S. 107, 117 (1987). There are significant

policy considerations underlying such a rule, including finality,

maintaining the integrity of the jury system, encouraging frank and

honest deliberations, and the protection of jurors from subsequent

harassment by a losing party. See McDonald v. Pless, 238 U.S. 264,

267–68 (1915). Rule 606(b) does, however, create an exception to

the common-law rule in situations where "extraneous prejudicial

information [is] improperly brought to the jury's attention." Fed.

R. Evid. 606(b). Despite this exception, we have nevertheless

warned that "[c]ourts generally 'should be hesitant[ ] to haul

jurors in after they have reached a verdict . . . to probe for

potential instances of bias, misconduct, or extraneous

influences.'" Neron v. Tierney, 841 F.2d 1197, 1205 (1st Cir.

1988) (quoting United States v. Moon, 718 F.2d 1210, 1234 (2d Cir.

1983)). A court should only conduct such an inquiry when

"reasonable grounds for investigation exist," i.e., "there is

clear, strong, substantial and incontrovertible evidence that a
8 We have previously noted the Globe article's ambiguity on

this point. See supra note 7.

-37-

specific, nonspeculative impropriety has occurred which could have

prejudiced the trial of a defendant." Moon, 718 F.2d at 1234

(citation omitted). Connolly cannot meet this high standard.

The Boston Globe article indicated that two jurors made

notes at home some evenings regarding that day's in-court

testimony. We agree with the district court that this note-taking,

assuming it actually happened, was not inconsistent with the

court's instructions. The judge told the jurors that he wanted

them to focus on the testimony, not in-court note-taking: "I want

you to just sit back and pay attention." Such a prescript did not

foreclose the possibility of note-taking outside of court. Indeed,

as the district judge noted, the jurors were provided with writing

materials in the jury room from the outset of trial. Hence, the

note-taking described in the Globe article did not constitute juror

misconduct.

Moreover, assuming that any notes actually made their way

into the jury room during deliberations,8 the notes cannot be

considered an "extraneous" or "extrinsic" influence. In Bassler,

the district court instructed the jury at the beginning of the

trial that note-taking was not permitted. Like the two jurors in

Connolly's trial, one of the Bassler jurors understood this

instruction to mean that "no notes should be taken during the

actual trial time but could be taken during recess or other times
-38-

outside actual trial time." Id. at 602. The juror therefore took

notes at the end of each day, and these notes eventually found

their way into the jury room during deliberations. The Bassler

court held that the juror's daily notes could not be considered an

improper "extrinsic influence" because they were, in fact,

intrinsic. We agree, and "[i]ntrinsic influences on a jury's

verdict are not competent to impeach a verdict." Id. Hence

Connolly cannot rely on the notes to demonstrate prejudice. Cf.

United States v. Balsam, 203 F.3d 72, 86 (1st Cir. 2000)

(indicating that sharing of notes in open court by jurors does "not

raise the same specter of prejudice as improper outside influences

upon the jury") (emphasis added).

Even if the notes could, somehow, be considered

"extrinsic," Connolly falls far short of providing specifics

regarding any prejudice. Instead, he only insists that the

district court should have conducted "an inquiry." Tellingly, he

does not suggest what form this inquiry should take. Rather, he

simply asks that we remand with instructions to the district court

to "do what has to be done to ferret out the truth." He does not

identify any witnesses he would call at an evidentiary hearing, or

what the substance of any testimony could possibly be. Indeed,

Connolly has made no proffer of any evidence other than the Boston

Globe article. Instead, there is only speculation, and mere
-39-

speculation can hardly be considered "clear, strong, substantial

and incontrovertible evidence." Moon, 718 F.2d at 1234.

We have repeatedly said that courts should respond to

allegations of juror impropriety in a manner appropriate to the

facts and circumstances at hand. See Ortiz-Arrigoitia, 996 F.2d at

443 ("The trial judge is not . . . shackled to a rigid and

unyielding set [of] rules and procedures that compel any particular

form or scope of inquiry."); Boylan, 898 F.2d at 258 ("We abjure

imposition of a rigid set of rules for the conduct of inquiries

into the presence or extent of extrinsic influences."); see also

Moon, 718 F.2d at 1234 ("[E]ach situation in this area is sui

generis."). Since we agree with the district court's conclusion

that its instructions to the jury did not preclude note-taking

outside the courtroom, and since Connolly has failed to make any

substantial evidentiary showing regarding prejudicial impropriety,

the district court properly exercised its discretion in denying

Connolly's motion for further inquiry.

V.

For the foregoing reasons, the judgment of conviction

entered on the jury's verdict and the sentence of the district

court are AFFIRMED.

SO ORDERED.